People v. Di Paolo, 67

• Decision Date: 17 May 1962
• Docket Number: No. 67,67
• Parties: PEOPLE of the State of Mighigan, Plaintiff and Appellee, v. Nick DI PAOLO, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 78

115 N.W.2d 78

366 Mich. 394

PEOPLE of the State of Mighigan, Plaintiff and Appellee, v. Nick DI PAOLO, Defendant and Appellant.

No. 67.

Supreme Court of Michigan.

May 17, 1962.

Smith & Franklin, by Gerald Franklin, Detroit, for defendant and appellant.

Frank J. Kelley, Atty. Gen., Eugene Krasicky, Sol. Gen., Samuel H. Olsen, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Angelo A. Pentolino, Asst. Pros. Atty., Detroit, for the People.

Before the Entire Bench, except ADAMS, J.

CARR, Chief Justice.

Defendant appellant and another were tried and convicted in the recorder's court of the city of Detroit under an information charging that they did knowingly accept and receive a certain sum of money without consideration from the proceeds of a woman engaged in prostitution. Said information was based on the provisions of C.L.1948, § 750.457 (Stat.Ann.1954 Rev. § 28.712). At the time of the commission of the alleged offense appellant was a clerk in a certain hotel in the city of Detroit, and the other defendant was employed as a bell boy. The jury returned a verdict of guilty as to both defendants, sentence was imposed, and Di Paolo has appealed claiming that because of certain alleged prejudicial errors occurring in the course of the trial he should be granted a new trial.

Appellant was a witness in his own behalf, denying his guilt of the offense charged against him. He was cross-examined at some length with particular reference to prior convictions. That the people had the right to such cross-examination, if properly conducted, is not open to question, the purpose being to assist the jury in determining the credibility of defendant as a witness in his own behalf. People v. Foley, 299 Mich. 358, 300 N.W. 119; People v. Finks, 343 Mich. 304, 72 N.W.2d 250, 51 A.L.R.2d 934; C.L.1948, § 617.63 (Stat.Ann. § 27.912). It is claimed in the instant case, however, that the assistant prosecutor in charge of the case exceeded the permissible scope of cross-examination, thereby depriving appellant of a fair trial. The following excerpt from the record before us indicates the situation.

'Q. All right. Now, you testified you had been in Erie, Pennsylvania, in 1950, is that correct?

'A. Yes, sir.

'Q. You also testified you had been convicted of only one crime, is that correct?

'A. Yes, sir.

'Q. I will ask you whether or not on the 23rd day of November, 1940, you were convicted of rape in Erie, Pennsylvania?

'A. I was no convicted. I,--this is very important to me to me to make statement about this. I,----

'Q. The answer is either 'yes' or 'no.'

'A. No, sir.

'Q. So if the police records show that, they are wrong?

'A. Yes, sir.'

After some further questions relating to defendant's past conduct counsel again referred to the alleged offense in Pennsylvania, and the following occurred:

'Q. You deny the rape in Pennsylvania?

'A. No deny. I was find no guilty. No rape.

'Q. So if the record shows you were convicted of rape in Pennsylvania, then this record is wrong?

'A. Yes, sir.'

At this point the attorney representing the appellant's codefendant moved for a mistrial, apparently on the theory that the cross-examination was materially prejudicial to both of the accused men. The motion was denied and the trial proceeded, with the result indicated.

No attempt was made by the people to establish that Di Paolo had in fact been convicted of the crime of rape in the State of Pennsylvania. The question asked, coupled with the reference to the police records, was well calculated to cause the jury to conclude that such conviction had occurred and that police records...